John Haile, Plaintiff in Error, v. J. W. Gardner, Defendant in Error, 82 Fla. 355

Whitfield, J. This writ of error was allowed and taken to a judgment quashing a writ of habeas corpus and remanding the petitioner to the custody of the sheriff.

It appears that John Haile was convicted and sentenced to imprisonment in the County Judge’s Court upon a charge that he “did unlawfully have in his possession certain intoxicating liquors, contrary to the statute;” that at the trial it was shown by the evidence contained in the bill of exceptions that the defendant’s residence was searched at night by officers (who the petitioner alleges did so without warrants of search, seizure or arrest) ; that certain quantities of “moonshine liquor” were by search found in the residence, and such “moonshine liquor” was referred to as evidence of guilt at the trial; and it further appears that the Court charged the jury “That where a person is found in possession of what is commonly called rum or moonshine liquor, this is prima facie evidence that he had such possession unlawfully and put the burden on the defendant to prove that his possession was lawful.

By prima facie evidence is meant, is evidence sufficient to convict the defendant,- unless the defendant proves that his possession was lawful,” and also charged that “the possession of moonshine liquor by the defendant in this case I believe, is not disputed by the defendant, then unless defendant proves to you that his possession was lawful, that is unless he proves to you that he obtained his possession of this liquor prior to August 7th, 1919, and that he had (not exceeding four quarts) in his private residence for the use of himself or his family and not to be disposed of to any person in any way, or unless his proof raises a reasonable doubt in your mind of his guilt, then you should find the defendant guilty.” The charge stating the offense is sufficient under the statute.

Sec. 6, Chap. 7736, Acts of 1918, Sec. 5468, Rev. Gen. Stats. The Court had jurisdiction of the offense. Sec. 5487 Revised General Statutes 1920. And the statute is not invalid, as to its provisions that are appropriate to enforce the Eighteenth Amendment to the Federal Constitution. See Wood v. Whitaker, 81 Fla. 653, 89 South. Rep. 118; Burows v. Moran, 81 Fla. 662, 89 South. Rep. 111; Hall v. Moran, 81 Fla. 706, 89 South. Rep. 104; Johnson v. State, 81 Fla. 783, 89 South. Rep. 114. See also Street v. Lincoln Safe Deposit Co., 254 U. S. 88, Sup. Ct. Rep.-. As to unlawful searches and seizures, see Gouled v.

United States, - U. S.-, 41 Sup. Ct. Rep. 261; Amos v. United States, -U. S.-, 41 Sup. Ct. Rep. 266; Tillman v. State, 81 Fla. 558, 88 South. Rep. 377. “The right of the people to be secure in their persons, houses, papers and effects against unreasonable seizures and searches, shall not be violated, and no warrants issued but upon probable cause, supported by oath or affirmation, particularly describing the place or places to be searched, and the person or persons, and thing or things to be seized.” Sec. 22, Declaration of Eights, Florida Constitution.

This organic provision in purpose and effect forbids the Legislature to enact laws that authorize unreasonable searches or seizures as well as forbids unreasonable searches and seizures by officers purporting to act under laws that authorize reasonable seizures and searches. What is a reasonable law authorizing a search or seizure, is ultimately for judicial determination upon due consideration of the nature and extent of the evil designed to be remedied and the provisions of the law.

What is a reasonable or valid search or seizure, is to be determined by the courts upon due consideration of the circumstances and manner in which the search or seizure is made by the officer. No search or seizure is permissible under the law without a proper warrant duly issued, except as a reasonable search and seizure may be allowed by law as an incident to a lawful arrest.

Where an arrest without a warrant is allowed by law, as for an offense being committed or threatened in the presence of an officer authorized by law to make arrests for such offense, a reasonable search and seizure that is properly incident to a lawful arrest may be made in a reasonable and proper manner by the officer making the lawful arrest; but the search and seizure should not be inappropriate to the reasonable requirements for making effective a lawful arrest.

Warrants authorizing a search or seizure may be issued only by the authorized officers and such warrants should not be issued except upon a due showing upon oath or affirmation, indicating a probable violation of law; and the warrants should particularly describe the person or place or thing to be searched or seized as indicated in the applications duly made for the warrants. There is no evidence that the “moonshine liquor” was alcoholic or intoxicating (Norwood v. State, 80 Fla. 613, 86 South. Rep. 506), or that it was being used for unlawful purposes.

The State statute provides that “it shall be sufficient to allege generally and to prove that the liquor is alcoholic or intoxicating liquors or beverages.” But the County Judge had jurisdiction to try the defendant for the offense that is under the statute sufficiently alleged in the affidavit and warrant; and the errors in charges and deficiencies in proofs referred to are merely matters of procedure. Such matters appear only in the bill of exceptions and they do not affect the jurisdiction of the Court or the sufficiency of the allegations of an offense.

The writ of habeas corpus cannot be used to correct mere errors of procedure where the Court had jurisdiction of the defendant and of the offense which is sufficiently charged and the judgment is within the power of the Court to render. Ex parte Bowen, 25 Fla. 214, 6 South. Rep. 65; Ex parte Prince, 27 Fla. 196, 9 South. Rep. 659; In re Robinson, 73 Fla. 1068, 75 South. Rep. 604; Crooke v. Van-Pelt, 76 Fla. 20, 79 South. Rep. 166; Gallagher v. Mc-Gourin, 218 U. S. 442, 31 Sup. Ct. Rep. 44; 12 R. C. L. 1186, 1192 et seq.

The writ of habeas corpus may be used to test the legality of an imprisonment or a detention in custody, and may be addressed to any person having the custody of another alleged to be illegal. The writ of certiorari is addressed to an inferior court and may be obtained only to determine from the face of the record of the inferior court whether such court in rendering a judgment complained of, exceeded its jurisdiction, or did not proceed according to the essential requirements of the law. The writ issues only in cases where no direct appellate proceedings are provided by law. See State v. Glenn, 54 Md. 572.

The writ of habeas corpus is a writ of right when a showing is duly made entitling a party-to the use of the writ; but the writ of certiorari issues only in the exercise of a sound legal discretion of the Superior Court.

Ordinarily the writ of certiorari will not be issued unless it is duly made to appear that the record of the proceedings in a cause in an inferior court shows that the inferior court exceeded its jurisdiction or violated the essential requirements of the law in rendering the judgment so as to inevitably deprive the complaining party of fundamental rights resulting in serious and material injury or gross injustice. Mere errors of procedure even resulting in an erroneous, as distinguished from an illegal or void judgement, may not warrant the issuance of a writ of certiorari.

The statute makes a bill of exceptions that has been duly settled and authenticated and filed, a part of the record in a litigated cause; and conceding that in appropriate proceedings on certiorari, the bill of exceptions may be considered in determining whether the Court proceeded according to the essential requirements of the law, in rendering the judgment in the cause; yet the writ of certiorari will not be used to test the propriety of rulings on the admission or rejection of evidence, the giving or refusal of charges or the probative force of conflicting evidence that is legally sufficient to sustain the verdict, (Benton v.

State, 74 Fla. 30, 76 South. Rep. 341; Harrison v. Frink, 75 Fla. 22, 77 South. Rep. 663), or other mere matters of procedure, except perhaps in cases of flagrant violations of law resulting in serious injury or injustice, or where jurisdictional or other fundamental matters are violated. See Balbontin v. State, 68 Fla. 84, 66 South. Rep. 421; State v. Live Oak, P. & G. R. Co., 70 Fla. 564, 70 South. Rep. 550; or perhaps in cases where there was no evidence as to elements of the offense that are essential to a lawful conviction and imprisonment. If the plaintiff in error has a remedy it is not habeas corpus.

Ex parte Bowen, 25 Fla. 214, 6 South. Rep. 65. Affirmed. Browne, C. J., and Taylor, Ellis and West, J. J., concur.